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‘Good and ready’ line part of adversarial system: lawyer

May 3, 2010|Written By Tim Naumetz

OTTAWA - The Justice Department lawyer representing the government and military police officers at an inquiry into prisoner transfers says the kind of confrontation he recently had during the proceedings is part of the “nature” of the adversarial court system.

But the past chairman of the inquiry by the Military Police Complaints Commission challenges that view and says the recent comments by Justice Department lawyer Alain Préfontaine reflect the combative attitude the Conservative government has taken during the probe into allegations detainees may have been tortured after Canadian military police transferred them to Afghan authorities.

The confrontational atmosphere at the hearings in Ottawa centres on attempts by the commission to obtain classified documents it argues could be crucial as it tries to judge the military’s actions in the detainee controversy.

But in the buildup to a recent outburst by Préfontaine - during which he told chairman Glenn Stannard the commission would get the documents “when they are good and ready” - commission counsel Ron Lunau called the back and forth with Préfontaine a “game of peekaboo” because of the government’s insistence the commission must show why it requires the documents before it can see them.

This portion of the battle between Préfontaine and the commission panel, which includes former RCMP deputy commissioner Roy Berlinquette, revolved around a Federal Court ruling last September that limited the inquiry to events, information, and dates that directly concern only military police and the original complaint the commission is hearing.

The government obtained the ruling as it fought to keep the commission from widening its probe.

Préfontaine wants the commission to demonstrate why it needs the documents, but the government won’t allow the commission to view them in order to argue their relevance.

“We are being asked to talk about the relevance of documents that we have no opportunity to look at,” argued Lunau, retained by the commission from Gowling Lafleur Henderson LLP in Ottawa.

As the confrontation continued, Stannard said: “I don’t really need a lecture on litigation, but what I do need is an answer relative to documentation production.”

At one point, Préfontaine responded by telling Stannard “the documents will be given to your counsel when they are good and ready.”

That part of the exchange made national headlines, but Préfontaine tells Law Times the events were normal for a courtroom.

“I’ll let you draw your own conclusion whether there are tense moments [at the inquiry],” he says. “It’s obvious that there are questions that are asked and answers given, and whether the answers please is for you to decide.

You draw your own conclusion. But in the normal course of litigation, there will be moments when people will agree to disagree. That’s the nature of an adversary process like a commission of inquiry.”

But lawyer Peter Tinsley, a former chairman of the commission, says Préfontaine was wrong to compare a board of inquiry to the adversarial nature of criminal or civil litigation.

“Unfortunately, that reflects part of the thinking on the part of the government. This is not supposed to be an adversarial process. It’s supposed to be an inquiry-based system, fact finding.”

In light of House of Commons Speaker Peter Milliken’s ruling that MPs have a right to order the government to produce uncensored versions of the same documents, Tinsley says the government’s refusal to provide them to the commission is groundless.

He notes he argued at the outset of the hearings that he had a top-secret security rating with the government; that Berlinquette had a secret security rating; that Lunau and other lawyers had security clearance; that a security-classified computer system was installed; and that Gowlings even dedicated a room at its downtown Ottawa offices to provide Lunau with a secure space to work.

“Arrangements can be made - it can be awkward and it’s cumbersome - but it can be done [such that] the information which is sought, to be protected legitimately, is not released in a fashion that violates the government’s security policy and national interest.”

As politicians now attempt to hammer out a secrecy system to resolve the parliamentary deadlock, similar problems may occur. “Whatever conditions are agreed to, a question I would have for you, and I don’t have the answer, is who is going to enforce those conditions?” Préfontaine asks.

“I give an undertaking to the court, then obviously I’m accountable for the discharge of my undertaking both to the court and to the law society. If a member of Parliament undertakes to protect public information but wants to make the information public, who does he go to and can he be relieved, and how, of his undertaking or oath?”